When you die, what happens to your Facebook account? Better start thinking about it.

Please don't poke.

Grim stuff, right? You may already have had a friend or loved one pass away and you saw their profile/timeline turn into a makeshift memorial. It could even be an important part of the grieving process for those who live far away or can’t attend a funeral. But you probably didn’t think this was an issue that you needed to think about.

Well, you do. And you can thank Oklahoma.

Back in 2010, Oklahoma passed House Bill No. 2800 which has the long and uncatchy title of “An Act relating to probate procedure; authorizing an executor or administrator to have control of certain social networking, microblogging or e-mail accounts of the deceased; providing for codification; and providing an effective date.” Phew. The title is almost as long as the material part of the law itself. Here it is, in its entirety:

The executor or administrator of an estate shall have the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.

Yup, that’s it. One long sentence (missing an Oxford comma, no less) that creates more issues than it solves.

The intent here was a good one. The lawmaker who authored the bill said he wanted people to start thinking about their digital estate. But they way they did it was to actually force the issue. I guess that’s one way to make people think about it, but it’s a bit heavy-handed.

Each platform has their own way of handling accounts of deceased users. Facebook, for example, turns the account into a special state called Memorialized. Friends can still view the page and post to it, but some information is hidden (Facebook is unclear what information is removed). There is no public information on how an executor can gain access to an account or even if they can, although some media reports about lawsuits have suggested there are ways.

In one respect, the Oklahoma law is merely codifying a gap that Facebook and others have in their terms. Nowhere in their terms do they say they will memorialize your account when you die. But they do explicitly say that everything you post belongs to you (despite articles on this law that suggest otherwise). So if your posts and content belongs to you then it becomes part of your estate when you die just like all your other property. This law can then be used to force sites to give the executor access. That’s not necessarily a bad thing–we’ve seen plenty of social accounts turn into books (collections of tweets, blog posts, etc.) so this could be like preserving those unpublished manuscripts of deceased authors. Morbid, but not without merit.

However, the law goes beyond that. An executor can continue your account? That’s a scary thought. So unless you explicitly state in your will that you want your accounts deleted or unmodified, the executor (which could be court appointed) can continue your Words With Friends games after you die. And you just know they haven’t learned the awesomeness of the word “QI” yet.

The law also falls short by saying “social networking” without defining such a term–that’s typically used for Facebook and LinkedIn but not for other social media platforms like Flickr. Would the law read on Flickr or YouTube content?

Back in 2010, I thought this was an isolated situation that could be rectified down the road. But according to a recent AP article, Oklahoma’s law is now sweeping down the plains. (No, I couldn’t resist.) Nebraska is taking up the issue with Oregon up next. (I included the link to the AP story on the Boston Globe as a nod to my friend Peter who told me about the story and is, ironically, the only person I know who isn’t on Facebook.) If more states want to take up the issue I can only hope they define the platforms better and also remove the ability for the accounts to continue unless expressly authorized by the deceased. (And even then, ew.)

In the meantime, if you just assumed that all your accounts would end when you do, and if such a thing matters to you, then you may want to add a sentence or two to your will.

IMPORTANT DISCLAIMER

SoMeLaw Thoughts are entirely my own opinion about social media legal issues and not the statement, opinion, or in any other way affiliated with Dell.

This means I could be completely wrong about everything I post here. Sure, I’ve practiced for over ten years in technology law and have supported Dell’s social media team for a fair amount of time, but if you get five lawyers in a room and ask a question you’re likely to get seven different opinions. Oh, and it’s a really boring room. And someone will probably start quoting Latin. So I could be totally wrong here.

This is also not specific legal advice for you. I don't know you. Even if I know you I didn't write this for you, I wrote it for the blog and you're reading it. You want legal advice? Hire an attorney! A good one.